Armborst v. Cincinnati Traction Co.
| Decision Date | 05 April 1928 |
| Docket Number | No. 4961.,4961. |
| Citation | 25 F.2d 240 |
| Parties | ARMBORST v. CINCINNATI TRACTION CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Murray Seasongood, of Cincinnati, Ohio (Clair McTurnan, of Indianapolis, Ind., Paxton & Seasongood, of Cincinnati, Ohio, and McTurnan & Higgins, of Indianapolis, Ind., on the brief), for plaintiff in error.
Leo J. Brumleve, Jr., of Cincinnati, Ohio, for defendant in error.
Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.
This writ is brought to review a judgment for defendant in an action for personal injuries alleged to have been suffered by plaintiff while a passenger upon defendant's street car line. The assignments presented relate to the admission and rejection of evidence, the charge of the court, and the questioning of the jurors upon their voir dire.
1. Plaintiff testified that the car stopped at the intersection of Twelfth and Walnut streets, that the motorman opened the door, and she stepped her right foot down on the first step, and that, as she had her left foot in the air ready to alight, the car started suddenly with a jerk, while the car door was still open, and threw her to the ground, causing the injuries complained of. Defendant denied that any such thing occurred, and contended that, if plaintiff fell in connection with her leaving the car, it must have been by slipping after she had landed, and not through the negligence of the defendant. Plaintiff was a resident of Indianapolis. The date of the accident was given as January 12, 1925; the time about 3:30 to 3:45 p. m.
Defendant introduced the testimony of nine motormen whose cars were due at the intersection in question between 2:42 and 3:45 p. m. on January 12th, each of whom testified that the alleged accident did not occur. Before presenting this testimony, however, defendant introduced the testimony of the superintendent of the division, to the effect that he was detailed to see the men individually and inquire of them the particulars of the accident. He was permitted, against plaintiff's objection, to testify that he brought each motorman individually to his (the superintendent's) private office, so that none would see or hear what it was until he had spoken to them, that he left each one to believe that "I thought he had such an accident," and that each one "told me positively that he had no such accident." This testimony was taken subject to the objection that it was hearsay. In our opinion the testimony in question was hearsay, objectionable, and prejudicial. Insurance Co. v. Guardiola, 129 U. S. 642, 9 S. Ct. 425, 32 L. Ed. 802; Vicksburg, etc., Railroad v. O'Brien, 119 U. S. 99, 101, et seq., 7 S. Ct. 118, 30 L. Ed. 299; Harper v. Harper (C. C. A. 4) 252 F. 39, 42. It may well be that the error in admitting hearsay will often be cured if the declarant thereafter testifies to the same thing and is cross-examined; but, in the setting shown by this record, its natural effect was improperly to bolster up the testimony and credibility of the motormen whose testimony immediately followed. We cannot agree with the court's statement, made in denying the motion to rule out, that the criticized testimony "was not in the remotest degree hearsay evidence, for it is not offered to prove that no such accident took place, but that no discovery was possible of the facts."1
Not only does it not specifically appear that the purpose of the offer was as stated by the court, but a showing that no discovery of the facts was possible was, at the best, merely incidental. The primary question was all the time whether the accident happened as claimed by plaintiff. Because of the error in admitting the testimony of the superintendent, the judgment of the District Court must be reversed. As the case must be tried again, we may properly consider certain features of the trial already had which seem likely to arise on the new trial, and without necessary reference whether, as to any of them, the record before us is such as to require reversal.
2. In examining the jurors on their voir dire, plaintiff's counsel suggested that the general question be asked whether any of the jurors were stockholders "in any traction or steam railroad company." The request was denied. We...
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